June 2013

June 25, 2013

Attorney General Eric Holder Jr. vowed Tuesday that the Justice Department would continue to enforce the Voting Rights Act around the country, even though he called the U.S. Supreme Court's decision, voiding a key provision in the law, "a serious and unnecessary setback."

Delivering a statement at Main Justice, Holder said the Justice Department will "continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights."

"Let me be very clear: we will not hesitate to take swift enforcement action—using every legal tool that remains available to us—against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens' full and free exercise of the franchise," Holder said.

A federal appellate court today gave the green light to a defamation lawsuit filed against the late conservative blogger Andrew Breitbart by former U.S. Department of Agriculture official Shirley Sherrod. A three-judge panel
affirmed a court order denying Breitbart’s motion to dismiss the case under the District of Columbia’s law barring strategic lawsuits against public participation, or SLAPPs.

Local lawyers hoping for a conclusive ruling on whether the anti-SLAPP law applies in federal court will have to keep waiting. In the ruling this morning, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit decided the case on procedural grounds.

The anti-SLAPP law, passed by the D.C. Council in March 2011, offered defendants an early route to dismissal if they believed they were sued over protected speech. The D.C. Circuit affirmed the denial of Breitbart's anti-SLAPP motion, finding the defendants missed the deadline to file.

A key U.S. senator has pledged legislation that will plug any holes in the Voting Rights Act left by Tuesday's U.S. Supreme Court decision in Shelby County v. Holder.

Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said in a statement that he intends "to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting."

Leahy pointed out that Congress reauthorized the Voting Rights Act and it was signed into law by a Republican president in 2006, saying it was "a thorough and bipartisan process in which Congress overwhelmingly determined that the law was still vital to protecting minority voting rights and that the coverage formula determining the jurisdictions to be covered was still applicable."

In a sharply divided 5-4 ruling, the Supreme Court on Tuesday struck down Section 4 of the Voting Rights Act -- the section that spells out the formula used to determine which jurisdictions warrant special scrutiny when they propose changes in their election processes.

The court issued the ruling in Shelby County v. Holder on the next-to-last day of the court's term. Chief Justice John Roberts Jr. announced at the end of this morning's session that the court would return to the bench Wednesday and issue the rest of its pending opinions -- presumably including the two cases involving same-sex marriage.

Roberts, writing for the majority in the Voting Rights Act case, said the 40-year-old formula contained in the law is "unconstitutional in light of current conditions," and called on Congress to update it to reflect more recent realities showing expanded minority voter registration and turnout. Click here for the opinion.

The majority opinion explicitly stated that "we issue no holding on Section 5 itself," referring to the section that requires covered jurisdictions to obtain preclearance from the Department of Justice before implementing election changes.

But in a dissent, Justice Ruth Bader Ginsburg said, "The court stops any application of Section 5 by holding that Section 4(b)'s coverage formula is unconstitutional."

"By second-guessing Congress’ judgment about which places should be covered by Section 5 of the Voting Rights Act, the court has left millions of minority voters without the mechanism that has allowed them to stop voting discrimination before it occurs," Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said in a statement. "This is like letting you keep your car, but taking away the keys. To say that I am disappointed is an understatement. Congress must step in."

The Supreme Court will meet Wednesday at 10 a.m. to issue opinions in three remaining cases, including the Defense of Marriage Act and Proposition 8 cases.

Crunch Time: All eyes on the U.S. Supreme Court this morning, for the second day in a row. The justices elevated the suspense at the end of their term on Monday, handing down five opinions but leaving the big ones possibly for today: Section 5 of the Voting Rights Act, and the same-sex marriages cases about Proposition 8 and the Defense of Marriage Act. Yesterday, the court ruled on a closely watched affirmative action case, Fisher v. University of Texas at Austin, The National Law Journal reports.

Is This Thing On?: Defense lawyer Don West started his opening statements on behalf of George Zimmerman with a knock-knock joke that fell flat before the stone-faced jurors, Fox News reports on the Florida trial of the man accused of killing Trayvon Martin. "Who's there?" West said. "George Zimmerman. George Zimmerman who? Okay, good. You're on the jury." Groan.

June 24, 2013

Scott Bloch, the former head of the Office of Special Counsel under the George W. Bush administration, was sentenced today to serve 24 months of probation and spend a day in jail. Bloch pleaded guilty to the misdemeanor charge of destroying government property after hiring an outside computer company to delete files from several work computers, including his own.

Bloch angled throughout the course of his case to avoid jail time. He originally pleaded guilty to a contempt of Congress charge, but successfully argued to withdraw the plea after learning he would face jail time, contrary to what both sides believed when they reached a deal. In late 2012, prosecutors charged Bloch with the related destruction of government property offense. Bloch asked for a sentence of probation, a fine and community service, which the government did not oppose.

At sentencing today, U.S. District Judge Robert Wilkins said that although the crime Bloch was charged with was relatively minor, he didn't feel Bloch had fully “come clean.” Bloch maintained that he wanted the computers wiped because he was concerned about viruses, but Wilkins said Bloch left too many questions unanswered about why he ordered the service for multiple computers. At the time, Bloch was facing a still-pending investigation by the Office of Personnel Management’s Office of Inspector General into allegations of retaliation against his employees; Bloch has said his handling of the computers was unrelated.

"Unfortunately, some press
reports have implied that the 12 partners in our group were among those
counseled for unsatisfactory performance at Patton Boggs. That is not accurate.
None of the lawyers now joining Holland & Knight were among those
counseled. Our group was very successful at Patton Boggs and we expect to have
continued success at Holland & Knight."

Patton Boggs warned 18 partners earlier this year that their
performance was unsatisfactory, and that they needed to improve or find a new
firm.

Now 17 partners are
parting ways with Patton Boggs. But it is unclear whether these are the same ones
who were put on notice. The
departures mark the second time this year Patton Boggs has shed a significant
number attorneys from its ranks.

In
March, Patton Boggs announced it was laying off 30 associates and 35
staff members at the same time that Legal Times reportedpoor
financial results for the firm.

Urban Outfitters Inc., is facing a class action in Washington federal court over allegations the clothing retailer collected customer zip codes in violation of District of Columbia consumer protection laws.

The
complaint, filed June 21 in U.S. District Court for the District of Columbia, accused Urban Outfitters Inc. of asking for customer zip codes in a way that implied the information was required to complete a credit card transaction. The plaintiffs claimed Urban Outfitters, which also owns Anthropologie-brand stores, used the zip codes to track down customer addresses for marketing purposes.

The lawsuit is the latest against a retailer over zip code collection practices. In March, the Massachusetts Supreme Judicial Court ruled retailers could be sued under Massachusetts consumer privacy law for collecting zip codes during credit card transactions, allowing a class action to proceed in Massachusetts federal court against Michaels Stores Inc.

Stepping back from the brink of possibly overturning affirmative action programs, the Supreme Court on Monday sent back to lower courts the University of Texas program that was under challenge in Fisher v. University of Texas at Austin.

The case returns to the the U.S. Court of Appeals for the Fifth Circuit with instructions from the Supreme Court majority to apply "strict scrutiny" to the question whether the University of Texas "has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."

Justice Anthony Kennedy, writing for the 7-1 majority, said the Fifth Circuit had given too much deference to the university on the issue. Justice Elena Kagan recused, likely because of her involvement in the case at earlier stages as solicitor general. The Supreme Court opinion is here.

The unusually brief 13-page opinion took eight months for the court to craft, suggesting extensive revisions to find narrow grounds that would command a majority. It appears to leave in place the 2003 Grutter v. Bollinger decision that allowed the use of race among other factors in university admission programs. Abigail Fisher, the white applicant challenging the University of Texas plan, did not directly ask the court to overturn Grutter.

The only dissent came from Justice Ruth Bader Ginsburg, who said she would not have returned the case"for a second look." She added that the court's majority "rightly declines to cast off the equal protection framework settled in Grutter."

The Fisher decision was one of five rulings issued Monday, with more to come Tuesday and probably one other day this week.

The remaining cases include a Voting Rights Act dispute and two cases on same-sex marriage. Check back here and at NLJ.com later for more on the Fisher ruling and other Supreme Court action.